USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 1 of 10
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 22-12673
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`Non-Argument Calendar
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`____________________
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`GUSTAVO A. ABELLA,
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` Plaintiff-Appellant,
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`versus
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`TOWN OF MIAMI LAKES,
`TOWN OF MIAMI LAKES MAYOR,
`Michael Pizzi, Individually and Official Capacity,
`MIAMI-DADE COUNTY,
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` Defendants,
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`ALEX REY,
`Individually and in Official Capacity,
`OFFICER JUAN F. RODRIGUEZ,
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` [DO NOT PUBLISH]
`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 22-12673
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`Non-Argument Calendar
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`____________________
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`GUSTAVO A. ABELLA,
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` Plaintiff-Appellant,
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`versus
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`TOWN OF MIAMI LAKES,
`TOWN OF MIAMI LAKES MAYOR,
`Michael Pizzi, Individually and Official Capacity,
`MIAMI-DADE COUNTY,
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` Defendants,
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`
`ALEX REY,
`Individually and in Official Capacity,
`OFFICER JUAN F. RODRIGUEZ,
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`USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 2 of 10
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`Opinion of the Court
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`22-12673
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`individually and Official Capacity,
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` Defendants-Appellees.
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`____________________
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`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:18-cv-24889-DLG
`____________________
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`Before WILSON, BRASHER, and ABUDU, Circuit Judges.
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`PER CURIAM:
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`Gustavo Abella appeals the district court’s exclusion of part
`of his testimony and admission of certain email evidence at trial.
`He also appeals the district court’s dismissal of his section 1983
`claim against Alex Rey and its denial of his motion for a new trial
`on the grounds that the verdict was against the weight of the evi-
`dence. Because the district court committed no reversible error, we
`affirm in full.
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`I.
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`
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`Abella, a longtime resident of Miami Lakes, Florida, believes
`that he is a victim of the local government’s decade-long conspir-
`acy against him. After other courts awarded significant attorney’s
`fees against him in his previous lawsuits, and after town manager
`Alex Rey obtained a restraining order prohibiting him from
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`22-12673
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`Opinion of the Court
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`entering Town Hall, Abella began placing a political sign on his ve-
`hicle accusing Rey of corruption. In the instant case, Abella avers
`that Rey and community officer Juan Rodriguez conspired to de-
`prive him of his First Amendment rights. Abella alleged that he
`would see Rodriguez drive near him and believed that, on occa-
`sion, Rodriguez was waiting for him to exit his apartment or was
`otherwise blocking his path. On two occasions when their vehicles
`were next to each other in traffic, Rodriguez held up his body cam-
`era as if he were filming Abella. At trial, Rodriguez used his time-
`sheets to corroborate his testimony that he often was not where
`Abella claimed he was during their alleged encounters. He did ad-
`mit to holding up his body camera, explaining that when he did so,
`Abella would “behave” and refrain from making his usual offensive
`gestures.
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`Only two of the amended complaint’s five counts are rele-
`vant to this appeal. In Count II, Abella sued Rodriguez under 42
`U.S.C. § 1983 for violating his First Amendment rights when he re-
`peatedly harassed and intimidated Abella in an attempt to remove
`the sign from his vehicle. Count III likewise asserted a claim under
`section 1983 against Rey, alleging that he planned to have Abella
`arrested for campaigning for a political opponent and that he ex-
`hibited deliberate indifference to Rodriguez’s actions. The district
`court dismissed Count III against Rey because Abella failed to state
`a claim for First Amendment retaliation and, in the alternative, be-
`cause Rey was entitled to qualified immunity. Abella and Rodri-
`guez proceeded to trial on Count II.
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`
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`Opinion of the Court
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`22-12673
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`At trial, the district court rejected Abella’s request that it re-
`dact the names of hundreds of prominent people and organizations
`whom Abella copied to emails accusing Rodriguez of various
`crimes and misconduct. The district court found evidence of those
`addressees relevant to Rodriguez’s defense that Abella was actually
`the one harassing him. Additionally, when Abella testified at trial
`about an interaction between him and another officer, the district
`court sustained a hearsay objection and prohibited Abella from re-
`citing the officer’s remarks. Unlike Abella, that officer was permit-
`ted to testify about the conversation.
`
`After a three-day trial, the jury returned a verdict with an-
`swers to special interrogatories. They concluded that although Ro-
`driguez did harass Abella, the displayed political sign was not a mo-
`tivating factor. Accordingly, the jury found in favor of Rodriguez.
`Abella moved for a new trial. After the district court denied the
`motion, Abella timely appealed.
`II.
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`
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`First, we will consider Abella’s argument that the district
`court erred in dismissing his claim against Rey for First Amend-
`ment retaliation. Rey previously moved to dismiss Abella’s appeal
`against him, arguing that we lacked jurisdiction because the case
`caption in the notice of appeal did not include Rey’s name. We cor-
`rectly denied the motion because the caption did not imply an in-
`tent to limit the scope of the appeal to only Rodriguez. Unlike the
`appellants in Osterneck, who specified only four of five defendants
`in the title and body of their notice, Abella did not expressly name
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`Opinion of the Court
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`the defendants in his notice. Osterneck v. E.T. Barwick Indus., Inc.,
`825 F.2d 1521, 1524, n.3 (11th Cir. 1987), aff’d sub nom. Osterneck v.
`Ernst & Whinney, 489 U.S. 169 (1989). Although only Rodriguez
`was identified in the caption, Abella simply used the same caption
`the district court used in its final judgment and order denying his
`motion for a new trial. Because a notice “encompasses all orders
`that, for purposes of appeal, merge into the designated judgment
`or appealable order,” even if the notice does not designate those
`merged orders, we have jurisdiction to consider the district court’s
`dismissal of the claim against Rey. Fed. R. App. P. 3(c)(4).
`
`We review a district court’s order granting a motion to dis-
`
`miss for failure to state a claim de novo. Hopper v. Solvay Pharms.,
`Inc., 588 F.3d 1318, 1324 (11th Cir. 2009). “We accept the factual
`allegations in the complaint as true and construe them in the light
`most favorable to the plaintiff.” Echols v. Lawton, 913 F.3d 1313,
`1319 (11th Cir. 2019).
`
`The district court properly dismissed Count III for failing to
`state a claim for First Amendment retaliation. Although Abella did
`engage in protected speech by campaigning for Rey’s political op-
`ponent, he failed to allege facts that Rey’s conduct adversely af-
`fected his protected speech or that a causal connection existed be-
`tween his speech and any retaliatory conduct. See id. at 1320. Abella
`allegedly left the campaign location based on an anonymous sec-
`ond-hand rumor that Rey intended to have him arrested for some
`unknown reason. The complaint failed to include any allegations
`of facts that “would likely deter a person of ordinary firmness from
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`Opinion of the Court
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`22-12673
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`the exercise of First Amendment rights.” Bailey v. Wheeler, 843 F.3d
`473, 481 (11th Cir. 2016). For example, there were no allegations
`that Rey communicated with Abella in any way before or after Rey
`arrived at the campaign location, that any law enforcement officers
`were present, or that Rey could have ordered the police to arrest
`Abella if he wanted. Accordingly, there was no actual or implied
`threat of arrest. See Turner v. Williams, 65 F.4th 564, 580 (11th Cir.
`2023). Because we affirm the district court’s dismissal for failing to
`state a claim, we need not address its secondary finding on qualified
`immunity.
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`III.
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`
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`Next, we will consider the district court’s evidentiary rulings
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`at the Rodriguez trial. We review for an abuse of discretion, affirm-
`ing the district court unless the ruling rests upon clearly erroneous
`findings of fact, conclusions of law, or applications of law to fact.
`Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1304 (11th Cir.
`2016). We will affirm even if the district court committed an error
`if that error did not affect the substantial rights of the parties. Id.
`When the effect on the verdict is uncertain, a party fails to show
`the error affected his substantial rights. See United States v. Rodri-
`guez, 398 F.3d 1291, 1299 (11th Cir. 2005).
`
`Abella argues that the district court erred in sustaining a
`hearsay objection to his testimony about statements another of-
`ficer made to him, despite permitting the officer to testify at trial
`about their conversation. Assuming without deciding that the hear-
`say ruling was incorrect, any such error was harmless because it did
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`Opinion of the Court
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`not have a substantial influence on the outcome of the case. United
`States v. Frazier, 387 F.3d 1244, 1266 n.20 (11th Cir. 2004). Abella
`does not even attempt to argue that the admission of his testimony
`would have likely changed the verdict. Instead, he contends that
`“[t]here are any number of legitimate reasons” why he would be
`able to provide “different details” at trial about the conversation
`with the officer. But beyond this cursory argument, there is no in-
`dication that Abella’s substantial rights were affected by the hear-
`say ruling. Abella’s trial counsel barely cross-examined the testify-
`ing officer, even though cross-examination is the principal means
`by which Abella could have tested the truth of the officer’s testi-
`mony. United States v. Mastin, 972 F.3d 1230, 1239 (11th Cir. 2020).
`The jury also learned that Rodriguez was not even at the scene of
`the interaction. Moreover, a video recording of the incident con-
`firmed the officer’s account. Because there is no indication that the
`hearsay ruling affected Abella’s substantial rights, we affirm the dis-
`trict court’s ruling.
`
`Abella also argues that the district court erred in admitting
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`his email complaints without redacting the names of certain recip-
`ients because that evidence was not relevant and constituted im-
`permissible character evidence. Although Federal Rule of Evidence
`608(b) prohibits extrinsic evidence solely designed to attack a wit-
`ness’s character for truthfulness, it permits evidence to demon-
`strate bias or undercut a witness’s credibility. United States v. Bur-
`nette, 65 F.4th 591, 606–07 (11th Cir. 2023). We have recognized
`that the line between evidence used to impeach a witness because
`he lacks credibility and evidence used to show he tends to lie is
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`hazy. Id. at 607. For this reason, we are reluctant to hold that a dis-
`trict court abuses its discretion when deciding Rule 608(b) issues.
`Id.
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`Abella sent emails accusing Rodriguez of various crimes to
`hundreds of prominent members of the government and media,
`such as former President Trump, FBI offices, local news networks,
`the New York Times, Sean Hannity, Roger Stone, and Infowars.
`Evidence of those recipients was relevant to Rodriguez’s defense
`that Abella was the one engaging in harassing behavior. It also ar-
`guably demonstrated Abella’s lack of credibility and bias as a wit-
`ness. Because Abella accused Rodriguez of a litany of salacious
`crimes to prominent members of the government and media, a rea-
`sonable jury could infer that Abella was a biased witness with a
`deep animosity towards him. Because we cannot say that the court
`abused its discretion, we affirm the district court’s decision not to
`redact the email addresses.
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`IV.
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` Abella’s final argument on appeal is that the district court
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`erred in denying his motion for a new trial because the jury’s sec-
`ond interrogatory answer was against the manifest weight of the
`evidence. Whether to grant or deny a new trial based on the weight
`of the evidence “is within the sound discretion of the trial court.”
`United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). We
`may only reverse if the trial court clearly abused that discretion, id.,
`which is a “particularly appropriate” standard “where a new trial is
`denied and the jury’s verdict is left undisturbed.” Rosenfield v.
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`Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987).
`“The evidence must preponderate heavily against the verdict, such
`that it would be a miscarriage of justice to let the verdict stand.”
`Martinez, 763 F.2d at 1313. We have explained that these motions
`are disfavored, and courts should grant them only in exceptional
`cases. Id.
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`The district court did not abuse its discretion in denying the
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`motion for new trial because the jury’s verdict was not against the
`great weight of the evidence. Abella admits in his brief that the case
`“largely came down to which version of evidence—Mr. Abella’s or
`Rodriguez’s—the jury believed.” In reviewing a district court’s de-
`nial of a motion for a new trial, we have a duty to safeguard the
`role of the jury. Rabun v. Kimberly-Clark Corp., 678 F.2d 1053, 1061
`(11th Cir. 1982). It is for the jury, not the court, to weigh conflicting
`evidence and determine witness credibility. Yates v. Pinellas Hema-
`tology & Oncology, P.A., 21 F.4th 1288, 1304 (11th Cir. 2021).
`
`Based on our review of the record, there are many conceiv-
`able reasons the jury could have found Rodriguez more credible
`than Abella. Rodriguez presented evidence that Abella was biased.
`Abella was unable to pay the judgments for attorney’s fees from
`previous cases and therefore had a financial reason to manufacture
`the claims. He also had a deep animosity for Rodriguez and accused
`him of a litany of unrelated crimes to prominent people in the gov-
`ernment and media. Abella’s demeanor during his testimony at
`trial also could have undermined his credibility with the jury. He
`constantly needed his memory refreshed, and the court had to
`
`
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`chastise him dozens of times for failing to answer direct questions.
`Because the verdict was not against the great weight of the evi-
`dence, we affirm the district court’s denial of Abella’s motion for
`new trial.
`
`V.
`
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`For the foregoing reasons, the district court is AFFIRMED.
`
`
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